Madras High Court
The Executive Officer vs The Presiding Officer on 23 September, 2021
W.P.(MD).No.4432 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S. SUNDAR
W.P.(MD).No.4432 of 2014
and
M.P(MD)No.1 of 2014
The Executive Officer,
Arulmigu Swami Nellaiyappar
Gandhimathi Amman Temple
Tirunelveli Town,
Tirunelveli District-627 006 ...Petitioner
Vs.
1.The Presiding Officer,
Labour Court,
District Court Complex,
Palayamkottai,
Tirunelveli District.
2.The Commissioner,
Hindu Religious & Charitable Endowments Department,
Chennai-600 034.
3.The Joint Commissioner,
Hindu Religious & Charitable Endowments Department,
Tirunelveli-2.
4.Mr.S.Ramasami Iyyer ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, for the
issuance of Writ of Certiorari, to call for the records pertaining to the impugned
order in C.P.No.05/2012 dated 07.09.2012 on the file of the respondent No.1
and quash the same as illegal.
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1/16
W.P.(MD).No.4432 of 2014
For Petitioner :Mr.G.Karthick
For R2 to R4 :No appearance
ORDER
This Writ Petition is filed by the Executive Officer of Arulmigu
Swami Nellaiyappar Gandhimathi Amman Temple, Tirunelveli Taluk,
challenging the order of the Labour Court in C.P.No.05/2012 dated 07.09.2012.
2.The fourth respondent in the writ petition was engaged as
Madappalli Worker in the Temple and the nature of work assigned to him was
to prepare temple Prasatham and other products. The fourth respondent
approached the Labour Court alleging that he was not paid salary in accordance
with the G.O.Ms.No.401, dated 04.09.1998. It was contended by the petitioner
that the fourth respondent did not make any request to him for arrears or
enhancement of salary and the fourth respondent approached the Labour Court,
without raising any issue. It is the specific case of the petitioner that the temple
does not come under the purview of the Industrial Disputes Act, 1947 and that
therefore, the petition filed by the fourth respondent before the Labour Court is
not maintainable against the petitioner. The Labour Court, by the impugned
order, awarded a sum of Rs.1,31,445/- with interest at the rate of 7.5% with
effect from 02.01.2012. Aggrieved over the same, the above writ petition is
filed.
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W.P.(MD).No.4432 of 2014
3.The learned counsel appearing for the petitioner raised a
preliminary objection as to the maintainability of the petition before the Labour
Court on the ground that the second respondent, who is an employee of the
Temple vested with HR&CE cannot be brought under the definition of worker
under the Industrial Disputes Act. The learned counsel did not make any
submission with regard to any other irregularities in the order of the first
respondent. The learned counsel for the petitioner reiterated the preliminary
objection raised as regards the maintainability of the petition filed before the
Labour Court.
4.The issue whether employees of Temple are entitled to gratuity
under Payment of Gratuity Act is particularly with reference to the Temples
administered by HR&CE, has been considered in several decided cases. The
learned counsel for the petitioner relied on the Full Bench of this Court, in the
case of E.GOPAL -vs- ARULMIGU DHANDAYUTHAPANI SWAMY
TEMPLE, PALANI AND OTHERS, reported in 2013(3) CTC 689, wherein it
is held that the Temple/Religious Institution would normally fall within the
definition of “establishment” and that the employees working in religious
institution are entitled to avail benefits of Gratuity Act. The Hon'ble Full
Bench of this Court considered the question whether a Religious
Institution/Temple will come within the purview of Section 1(3) of the Payment
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W.P.(MD).No.4432 of 2014
of Gratuity Act, in the light of the law laid down by the Hon'ble Supreme Court
in State of Punjab -vs- Labour Court, Jullundur, 1981(1) LLJ 354.
5.The Full Bench of this Court, considering the specific plea that was
raised by the petitioner in the present case, held as follows:
“16. Before going through the aforesaid order of the
Division Bench, it would be profitable to note the order of the
learned single Judge, which gave rise to the aforesaid
Division Bench decision.
The matter related to payment of gratuity to the
retired employees of the Arulmigu Subramaniaswamy
Devasthanam, Tiruchendur, under the Payment of the Gratuity
Act. The main contention of the employees before the learned
single Judge was that at the time of retirement, the employees
are paid only the provident fund but not pension and the
Devasthanam comes under the purview of the Payment of
Gratuity Act and as per Section 2-J of the Industrial Disputes
Act, the Devasthanam has to be treated as an industry. The
stand of the Management was that the employees are entitled
to provident fund and not either pension or gratuity and that
the management does not come under the category of
'industry' nor fall under the ambit of Section 1(3) of the
Payment of Gratuity Act.
In the absence of furnishing of already decided
cases toward their stand point by either of the counsel, the
Court proceeded to pass orders on the facts pleaded by parties
and the circumstances encircling the case.
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W.P.(MD).No.4432 of 2014
1(3) of the Payment of Gratuity Act, the learned single Judge
observed as follows:-
'12. Coming to the applicability of Section 1(3) of
the Payment of Gratuity Act, 1972 to the employees of the
respondent Devasthanam, excepting to denote under Section
1(3)(b) to the effect of having ten or more persons employed in
relation to the Shops and Establishment Act, nothing else is
found for being applicable to religious institutions like the
respondent Devasthanam. The other establishments indicated
therein are either commercial or industrial establishments and
not a religious institution such as the respondent institution
such as the respondent Devasthanam. Therefore, it is safe to
conclude that for the respondent Devasthanam, Section 1(3) of
the Payment of Gratuity does not apply at all, needless to
mention that the members of the petitioner Sangam are not
entitled to claim gratuity as they have claimed in the above
writ petition.'
18. When the matter was taken in appeal, the
Division Bench by a short judgment dismissed the writ appeal
by observing as follows:-
'2. This writ appeal is directed against the order of
the learned Single Judge rejecting the contention of
applicability of Payment of Gratuity Act, 1972 (in short ‘the
Act’) to the religious institution / respondent herein. The fact
that the respondent is a religious institution is not disputed. If
that be so, Section 1(3) of the Act read with Shops and
Establishments Act, makes it clear that Section 1(3) of the Act
does not apply to the respondent. That apart even on 17.10.98,
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W.P.(MD).No.4432 of 2014
the appellant / sangam had made an application to the Joint
Commissioner / Executive Officer of the respondent
endowment for payment of gratuity and even though, the plea
was rejected on the ground of inapplicability of the provisions
of the payment of gratuity, the order had become final, as it
remains unchallenged. For the above reasons, the writ appeal
is dismissed.'
19. A reading of the aforesaid decisions rendered by
the learned single Judge and confirmed by the Division Bench
would show that neither the decision of the Apex Court or the
other High Courts or this Court had been relied on / referred
to in order to arrive at a conclusion that a religious institution
does not come under the purview of the Payment of Gratuity
Act, 1972. The learned single Judge merely on the basis of
facts encircling the case proceeded to observe that Section
1(3) of the Act is not applicable to religious institutions.
Neither the learned single Judge nor the Division Bench had
the benefit of going through the decisions of the Honourable
Supreme Court rendered in the context of applicability of the
term 'establishment'.
20. The Honourable Supreme Court in State of
Punjab v. Labour Court, Jullundur, 1980(1)SCC 4 : 1981 (1)
LLJ 354 (cited supra) had given a wider meaning to the
expression 'law' is Section 1(3) (b) of the Payment of Gratuity
Act by stating that it can apply to every establishment within
the meaning of any law for the time being in force in relation
to an establishment in a State and it was not necessary that
the law should be one relating to shops and establishment
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W.P.(MD).No.4432 of 2014
alone. In other words, it was laid down that Section 1(3)(b)
can even apply to non-commercial establishments.“
The above judgment does not lend any support to the petitioner or has
relevance in this case.
6.The High Court of Calcutta in its judgment dated 22.09.2003 in
W.P.No.16959 of 2002 in the case of NATHJI BHANDAR AND ORS. -VS-
STATE OF WEST BENGAL AND ORS., reported in 108CWN(8) has held as
follows:
“7.According to me, by virtue of Hindu Law if one
temple is declared as public temple by the Court it will not take
away the right of the livelihood of a person attached to such
temple. Moreover, Section 2(i) is very particular in this respect.
It does not speak for a moment that as because one
establishment by virtue of definition declared as temple ipso
facto it will take away right of the workmen attached to it. The
meaning of the temple is not relevant for the purpose of the
Industrial Disputes Act, 1947. The meaning of the nature of the
works attached to such temple is relevant for the purpose of due
consideration. At the time of hearing of the matter by the
Learned Judge of any Industrial Tribunal of Labour Court it is
open to consider whether any workman whose grievance is to be
adjudicated attached merely with the spiritual or religious
activities of such temple or not. If such service is not attached to
the spiritual or religious activities the right of such other
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W.P.(MD).No.4432 of 2014
persons cannot be ignored from due consideration by the Court
or Tribunal as an industrial dispute. The meaning of industry is
very clear to the extent. It says about the systematic activities by
co-operation between the employer and workmen which is
available in a temple. It relates to production, supply or
distribution of goods or services with a view to satisfying human
wants to wishes meaning thereby the scope of such work is
limited to the aforesaid extent. Only the wants and wishes which
are merely spiritual or religious is eliminated. Therefore, if one
is attached directly to the idol for the purpose of conduct of
religious rites as produced or working as mediator between a
God and worshippers and the people directly concerned with
such persons cannot be said to be the workmen but not other
persons who are not directly involved. In such type of activities
unless and until excluded by any operation of law. In the present
case, the specific Act and Rules do not say that Sri Nathji
Bhandar of Calcutta is a temple as per Section 2(viii) of the Act.
The persons concerned are not directly involved with such type
of religious and spiritual activities of the idol situate at Sri
Nathji Temple at Nathdwara District, Udaipur, Rajasthan.
Hence, my considered view is that Sri Nathji Bhandar, Calcutta
cannot be held to be a temple for the sake of Industrial Disputes
Act, 1947. Therefore, as a consequential effect the meaning of
industry as Section (j) or the Industrial Disputes Act, 1947
squarely applies in this case.”
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W.P.(MD).No.4432 of 2014
7.The Division Bench of THE High Court of Himachal Pradesh, in
the case of JAGBIR SINGH AND ORS., -VS- STATE OF H.P. AND ORS.,
reported in 2000(1)SCT 30(HP), had an occasion to deal with a similar issue,
whether a religious Trust included in the schedule to the Religious Institutions
and Charitable Endowments Act, 1984 is an industry and the employees are its
workman who will be governed by the provisions of Industrial Disputes Act.
Considering the facts that the writ petitioners were engaged in the temple not in
relation to “Pooja and Archana”, the Division Bench held as follows:
“9.Neither in the writ petitions nor in the rejoinders
(except CWP NO.295/98 titled Parashotam Lal and Ors. v.
Commissioner-cum-Dy. Commissioner, Baba Balak Nath
Temple Trust and Ors. Wherein as per the petitioners they
were engaged in construction wing) the petitioners have
mentioned that in which wing/department/Section of the Trust
they were engaged and also the nature of work being
performed by them during the course of their engagement on
daily wage. But in the facts and circumstances stated in the
replies-affidavits of the Trust we have no hesitation to hold,
by applying the tests laid down in para 140 of Bangalore
Water Supply (supra) that the Trust is an 'industry' being
undertaking, which is engaged in (I) systematic activity, (ii)
organised by Co-operation between employer and its
employees (iii) for the production and /or distribution of
goods and services calculated to satisfy human wants and
wishes of devotees and pilgrims visiting the temple of the
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W.P.(MD).No.4432 of 2014
Trust by carrying on activities of construction, development
and maintenance of the buildings and properties of the Trust
including that of the Temple and the 'Thedas' where the
offerings are made, running of langar for the devotees and
pilgrims, the running of canteen, maintenance of mini
museum, library, school, colleges etc., as stated in the reply-
affidavit of the Trust. It is of no consequence that langar is
being run free of any charge and canteen is being run on no
profit no loss basis as absence of profit motives of gainful
objectives in the activities of the undertaking is irrelevant.
The true focus is functional and decisive test is nature of the
activity with the special emphasis on the employer-employee
relations having semblance to trade or business, which test is
satisfied by the facts brought on record by the Trust to hold it
'Industry' as defined in Section 2(j) of the Act.”
8.The scope of Section 2(j) of Industrial Disputes Act, was
considered by a Seven Members Bench of Hon'ble Supreme Court in the case
of Bangalore Water Supply and Sewerage Board -vs- A.Rajappa and ors.,
reported in AIR 1978 SC 969. The following view expressed by Hon'ble Justice
Y.V.Chandrachud, of Supreme Court in para 175 of the judgment throws some
light and hence extracted below:
“175.That leads to the consideration whether
charitable enterprises can at all be industries. Viewing the
problem from the angle from which one must, according to me,
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view the State's inalienable functions, it seems to me to follow
logically that a systematic activity which is organised or
arranged in a manner in which trade or business is generally
organised or arranged would be an industry despite the fact
that it proceeds from charitable motives. It is the nature of the
activity that one has to consider and it is upon the application
of that test that the State's inalienable functions fall within the
definition of 'industry'. The very same principle must yield the
result that just as the consideration as to who conducts an
activity is irrelevant for determining whether the activity is an
industry, so is the fact that the activity is charitable in nature
or is undertaken with a charitable motive. The status or
capacity, corporate or constitutional, of the employer would
have, if at all, closer nexus, than his motive, with the question
whether the activity is an industry. And yet that circumstance,
according to me, cannot affect the decision of the question. The
motive which propels an activity is yet another step removed
and, ex hypothesi, can have no relevance on the question as to
what is the nature of the activity. It is never true to say that the
nature of an activity is charitable. The subjective motive force
of an activity can be charity but for the purpose of deciding
whether an activity is an industry, one has to look at the
process involved in the activity, objectively. The argument that
he who does charity is not doing trade or business is normally
organised or arranged. If so, the activity would be an industry
no matter whether the employer is actuated by charitable
motives in undertaking it. The jural foundation of any attempt
to except charitable enterprises from the scope of the definition
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can only be that such enterprises are not undertaken for profit.
But then that, clearly, is to introduce the profit-concept by a
side wind, a concept which, I suppose, has been rejected
consistently over the years. If any principle can be said to be
settled law in this vexed field it is this : the twin consideration
of profit motive and capital investment is irrelevant for
determining whether an activity is an industry. Therefore,
activities which are dominated by charitable motives, either in
the sense that they involve the rendering of free or near-free
services or in the sense that the profits which they yield are
diverted to charitable purposes, are not beyond the pale of the
definition in Section 2(j). It is as much beside the point to
inquire who is the employer as it is to inquire why is the
activity undertaken and what the employer does with his
profits, if any.”
9.This Court is of the view that the question whether the fourth
respondent fits into the definition of 'worker' should be considered with
reference to the nature of his engagement. The temple may be a religious
institution where several worshippers come and visit the temple on daily basis.
Several persons are engaged for different purposes within the temple or outside
the temple. In every temple there are two kinds of employees engaged in
relation to religious or non-religious activities of the temple. This Court is fully
convinced that the temple is an establishment that comes under the purview of
the Industrial Disputes Act, insofar as employees engaged in relation to the non
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W.P.(MD).No.4432 of 2014
religious activities of the temple. Separate rules are framed for employees of
temples under the control of HR&CE in relation to non religious activities. It is
stated in the claim petition that the temple prasadam are sold in separate shops.
The Hon'ble Supreme Court has also held in the case above referred to that
industry does not include spiritual or religious services, but inclusive of
material things or services geared to celestial bliss. It is stated that in madapalli
varieties of eatables are prepared for selling them to devotees to make a little
profit. Hence, this Court is unable to agree with the submission of the learned
counsel for the petitioner and the writ petition is liable to be dismissed since no
other issue on merits is raised. This Court is convinced that the dispute raised
against the temple in question, is maintainable at the instance of the fourth
respondent, who was engaged in Madappali. Accordingly, this Writ Petition is
dismissed. No costs. Consequently, connected miscellaneous petition is closed.
10.From the records, it is seen that at the time of admitting the writ
petition, this Court granted an order of interim stay subject to a condition that
the petitioner/Management herein pays a sum of Rs.1,31,445/- to the fourth
respondent herein within a period of two weeks.
11.It is now submitted by the learned counsel for the petitioner that
the amount as per the interim order of this Court had been deposited and the
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W.P.(MD).No.4432 of 2014
fourth respondent has received the amount and acknowledged that no other
amount is due. However, the learned counsel for the petitioner has not produced
any records to show that the fourth respondent has received the amount in full
satisfaction of his claim. The submission of the learned counsel for the
petitioner to delete the interest portion in the award of the first respondent
cannot be accepted. However, this Court is in favour of reasonable interest
being paid to the fourth respondent. The Labour Court has awarded interest at
the rate of 7.5% per annum. However, this Court is of the view that 4.5% will
be a reasonable interest.
12.Accordingly, the Writ Petition is partly allowed. The award of the
Labour Court in C.P.No.05 of 2012 dated 07.09.2012 is confirmed except the
interest portion, which is reduced to 4.5% instead of 7.5%. The petitioner is
liable to pay interest at 4.5% instead of 7.5% as awarded by the Labour Court.
With the slight modification with regard to interest, the award of the Labour
Court is confirmed. No costs. Consequently, connected miscellaneous petition
is closed.
23.09.2021
Index : Yes / No
Internet: yes / No
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W.P.(MD).No.4432 of 2014
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized
for official purposes, but, ensuring that the copy of the
order that is presented is the correct copy, shall be the
responsibility of the advocate / litigant concerned.
To
1.The Presiding Officer,
Labour Court,
District Court Complex,
Palayamkottai,
Tirunelveli District.
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W.P.(MD).No.4432 of 2014
S.S. SUNDAR, J.,
Ns
W.P.(MD).No.4432 of 2014
and
M.P(MD)No.1 of 2014
23.09.2021
https://www.mhc.tn.gov.in/judis/
